Exhibit 10.29
CONSULTING AGREEMENT
This agreement is entered into as of the 14th day of March, 2005
("Agreement"), by and among St. Xxxxx Investment Group, Inc., a Florida
corporation, and/or its designees or assigns ("Consultant") and Bidville, Inc.,
a Nevada corporation, and its subsidiaries (the "Company") (collectively the
"Parties").
WHEREAS, the Company operates an online auction web site known as
XxxXxxxx.xxx and NoBidding Inc.
WHEREAS, the Company wishes to retain Consultant as an independent
contractor, and Consultant wishes to be retained in such capacity and perform
certain services for the Company to promote the interests of the business of the
Company.
WHEREAS, Consultant has been providing the Company with financial,
acquisition, strategic, and business planning and consulting services since
August 2003, and shall continue to provide such services for the period of time,
and upon the terms and subject to the conditions, which are more particularly
set forth below.
NOW, THEREFORE, for adequate consideration, the sufficiency and receipt of
which is hereby acknowledged, and agreeing to be bound by the terms and
conditions hereinafter set forth, the Parties hereby agree as follows:
1. Consultant has consulted and shall continue to consult with, advise,
and otherwise assist the Company in a complete evaluation of its
business plan and operations to determine the best course of present
and future business management, development and financial growth for
the Company. Consultant has rendered and shall continue to render
certain management and consulting services in connection with
corporate development activities and the operation and conduct of
the Company's business, which services include, without limitation:
a. Advice and assistance concerning any and all aspects of the
Company's original organization, operations, planning,
financing, public relations, and investor relations; and
b. Assistance in structuring financing strategies for the
Company, including, without limitation, the identification,
support, negotiation, and analysis of acquisitions and
dispositions by the Company, as well as support, negotiation,
and analysis of financing alternatives, whether debt or
equity;
Consulting Agreement
Bidville, Inc. Page 1 of 7
c. Advisory services in connection with any transactions relating
to the refinancing, public or private offering or sale of all
or any part of the Company's assets or capital stock to any
persons, in each case whether by way of merger, consolidation,
reorganization, recapitalization, offering, partnership, joint
venture or otherwise;
d. The conduct of relations on behalf of the Company with
accountants, attorneys, financial professionals and other
professionals. Consultant will cause its employees and agents
to give the Company the benefit of their special knowledge,
skill and business expertise to the extent relevant to the
Company's business and affairs (including, without limitation,
financing affairs); and
2. It is the intent of the parties that Consultant for the Term
(hereinafter defined) of this Agreement shall be the Company's
management consultant for all purposes described in paragraph 1 of
this Agreement.
3. The Company has provided, and will continue to provide, or cause to
be provided, to Consultant all financial and other information
requests by Consultant for the purpose of performing its duties
under this Agreement (all such information being called the
"Information"). Consultant will rely upon the Information without
having independently verified the same. The Company represents and
warrants that to its knowledge, based upon its diligence and the
information provided to it, the Information will be true, accurate,
and complete, and will not contain any untrue statement of a
material fact, or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading. Consultant shall keep strictly confidential any
non-public Information that it may obtain about the Company during
the course of providing the services under this Agreement.
4. This Agreement shall be in full force and effect beginning October
1, 2004 and shall continue for a period of three (3) years from the
date thereof ("Primary Term"), subject to the provisions for
termination as hereinafter provided. The Term of this Agreement
shall automatically extended for additional two (2) year periods
("Renewal Term"), unless either party gives the other written notice
of non-renewal at least ninety (90) days prior to the expiration of
the Primary Term or Renewal Term then in effect.
5. As consideration for the management and consulting services provided
by Consultant, the Company will pay a consulting fee in the amount
of Fifteen Thousand and No/100 Dollars ($15,000.00) per month for
the first year this Agreement is in effect and Twenty Thousand and
No/100 Dollars ($20,000.00) per month thereafter. For its
professional consulting services rendered in connection with the
transaction introduced by the Consultant or its affiliates, and
presently contemplated by the Company ("Current Transaction"), the
Company shall pay to Consultant or its affiliates (whichever is
applicable) a transaction fee equal to Seventy Five Thousand and
No/100 Dollars ($75,000.00), which shall be due and payable upon the
closing of the Current Transaction.
Consulting Agreement
Bidville, Inc. Page 2 of 7
6. The Company further agrees that the any additional financing
transactions or other transactions are dependent upon the execution
of such documentation by the Company, as Consultant and its counsel
require, to obtain and perfect the terms and conditions of such
financing transactions or other transactions. All documentation in
connection with the financing transactions or other transactions
proposed by Consultant is to be prepared by Consultant's counsel and
all reasonable fees and expenses in connection therewith will be
included in Consultant's reimbursable accountable expenses, subject
to approval by the Company. In addition, upon the execution of this
Agreement the Company agrees to allow Consultant to provide
consulting services to Company in order to negotiate with all
funding sources and potential partners/merger candidates, including
but limited to, sources introduced by the Company.
7. The Company shall be solely responsible for paying any and all
finders, investment bankers, brokers, or others who, by virtue of an
agreement entered into with the Company, may be entitled to any fee
or commission, including, but not limited to, any equity in
connection with this Agreement and the transactions contemplated
herein. The amounts described in this paragraph 7 shall not be an
obligation of Consultant or its affiliates.
8. For the Term of this Agreement, the Company shall notify Consultant
promptly of the occurrence of any event which might materially
affect (i) the business or status, financial or otherwise, of the
Company, (ii) the relationship of the Company and Consultant; (iii)
the style, approach or method in which Consultant may perform its
services hereunder; or (iv) any transactions contemplated by Company
that Consultant is advising or assisting with.
9. It is understood that the Company is a public company, and,
therefore, may be required to make appropriate disclosures regarding
this Agreement in compliance with all applicable securities laws,
rules and regulations. No other announcements, except as may be
required in the opinion of legal counsel to comply with applicable
disclosure laws, shall be made about this Agreement or the services
contemplated herein by any party without the express prior written
approval of the other party. No public announcement in which the
name of the Consultant, any of its officers and directors appears
may be made by the Company or its affiliates without Consultant'
prior written approval and no work documents prepared by Consultant
or in connection with the matters contemplated by this Agreement may
be distributed to any party without prior written approval of
Consultant. The Company and Consultant acknowledge that they may
obtain non-public information concerning each other. Each agrees not
to disclose such information or act upon same in violation of the
applicable securities laws.
10. It is understood and agreed by the parties that Consultant is acting
solely as a consultant and is not licensed to sell, trade, or act as
an agent in the sale of securities. Consultant shall introduce the
Company to licensed broker dealers as may be provided by the terms
of this Agreement.
11. The Company shall pay all reasonable expenses incurred in connection
with the preparation, printing, and, where applicable, filing of all
documents with respect to the transactions herein contemplated. Such
additional expenses shall include without limitation legal and
accounting fees and expenses, and are due and payable upon receipt
of invoices.
Consulting Agreement
Bidville, Inc. Page 3 of 7
12. The Parties shall indemnify each other, their parents, affiliates,
and subsidiaries, and each of their directors, officers, employees,
agents, and representatives (collectively, the "Indemnified
Parties"), and hold them harmless from and against any and all
claims, actions, damages, consequential damages, liabilities and
expenses (collectively, "Losses") occasioned by any act or omission
of the other Party, its directors, officers, employees, agents or
representatives, relating to the performance of its obligations
hereunder or the negotiations thereof. If the Indemnified Parties
shall, without fault of their part, be made party to any litigation
concerning the Indemnified Party or the Indemnified Party's
performance hereof, or commenced by or against the Indemnified
Party, then the other Party shall protect and hold the Indemnified
Party harmless, and shall pay all costs, losses, expenses, and
reasonable attorney's fees incurred or paid by the Indemnified Party
in connection with said litigation.
13. The Company acknowledges and agrees that neither Consultant nor any
of Consultant employees, officers, directors, affiliates or
associates shall be required to devote full time and business
efforts to the duties of Company as specified in this Agreement, but
instead shall devote only so much of such time and efforts as
reasonably requested by the Company. The Company further
acknowledges and agrees that Consultant and its affiliates are
engaged in the business of investing in, acquiring and/or managing
businesses for Consultant own account, for the account of
unaffiliated parties, and understands that Consultant plans to
continue to be engaged in such businesses (and other business or
investment activities) during the Term of this Agreement. No aspect
or element of such activities shall be deemed to be engaged in for
the benefit of the Company or any of its parents or subsidiaries nor
constitute a conflict of interest. Furthermore, notwithstanding
anything herein to the contrary, Consultant shall be required to
bring only such investments and/or business opportunities to the
attention of the Company as Consultant, in its sole discretion,
deems appropriate. The Company waives any right to assert a conflict
regarding this activity performed by Consultant for other entities
or its affiliates.
14. Consultant (including any person or entity acting for or on behalf
of Consultant) shall not be liable for any mistakes of fact, errors
of judgment, for losses sustained by the Company or for any acts or
omissions of any kind (including acts or omissions of Consultant),
unless caused by intentional misconduct, recklessness or gross
negligence of Consultant.
15. All information, knowledge and data relating to or concerned with
the operations, business and affairs of Consultant or the Company
which are exchanged by the parties hereto in connection with the
performance by Consultant of its duties hereunder shall be the
property of Consultant or the Company, whichever is the disclosing
party, and be treated as confidential information and shall be held
in a fiduciary capacity by the parties hereunder.
Consulting Agreement
Bidville, Inc. Page 4 of 7
16. All notices, demands, consents, approvals and requests given by
either party to the other hereunder shall be in writing and shall be
personally delivered or sent by registered or certified mail, return
receipt requested, postage prepaid, to the parties at the following
addresses:
If to Consultant:
ST. XXXXX INVESTMENT GROUP, INC.
000 X. Xxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
If to the Company:
BIDVILLE, INC.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Any party may at any time change its respective address by sending
written notice to the other party of the change in the manner
hereinabove prescribed.
17. The Company shall execute and/or issue such other documents as are
necessary to affect the purposes of the transactions herein
contemplated. Without limitation, it is contemplated by the parties
hereto that such documents may include securities offering
documents; and in such event the Company represents and warrants
that all such documents shall be prepared in compliance will all
applicable securities laws.
18. It is understood and agreed by the parties that both parties to this
Agreement are each independent contractors with respect to each
other, and not employees, agents, joint venture partners, or
partners of the other for any purposes whatsoever. The Company shall
have no right to, and shall not control the manner or prescribe the
method by which the services are performed by Consultant.
19. The execution, delivery and performance by the Parties, and the
consummation by the Parties of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on the
part of the Parties. This Agreement has been duly executed and
delivered by the Parties and constitutes valid and binding
obligations of the Parties, enforceable against the Parties. The
execution, delivery and performance of the transactions contemplated
by this Agreement, and compliance with its provisions by the
Parties, will not violate any provision of law and will not conflict
with or result in a breach of any of the terms, conditions or
provisions of, or constitute a default under, or require a consent
or waiver under, the Parties' Articles of Incorporation or Bylaws
(each as amended to date), or any indenture, lease, agreement or
other instrument to which the Parties is a party, or which the
Parties or any of its property is bound, or any decree, judgment,
order, statute, rule, or regulation applicable to the Parties.
Consulting Agreement
Bidville, Inc. Page 5 of 7
20. This Agreement, and all rights and obligations hereunder, shall be
binding upon and inure to the benefit of each party's heirs,
executors, representatives, successors and assigns.
21. The parties agree that the laws of the State of Florida shall govern
any and all disputes, including but not limited to, claims arising
out of this Agreement or the negotiations thereof, without regard to
conflict of laws principles. Jurisdiction and venue shall be solely
in the Federal or State Courts of Palm Beach County, Florida.
22. The undersigned represents and warrants to the other that he is the
officer as identified below and is authorized to execute this
Agreement on behalf of the party being bound and the execution of
this Agreement will not conflict with or breach any other agreement
to which either the Company or the Consultant is a party.
23. This Agreement is not intended for the benefit of and should not be
relied upon by any third parties, neither the Company nor the
Consultant shall have no liability to any such party.
24. Each party herein expressly represents and warrants to all other
parties hereto that (a) before executing this Agreement, said party
has fully informed itself of the terms, contents, conditions and
effects of this Agreement, (b) said party has relied solely and
completely upon its own judgment in executing this Agreement, (c)
said party has had the opportunity to seek the advice of independent
counsel before executing this Agreement, (d) said party has acted
voluntarily and of its own free will and executing this Agreement,
and (e) this Agreement is the result of arm's length negotiations
conducted by and among the parties.
25. This Agreement constitutes the entire agreement of the parties with
respect to the matters herein referred and supersedes all prior
agreements and understandings, written and oral, between the parties
with respect to the subject matter.
26. Neither this Agreement nor any term hereof may be changed, waived or
terminated orally, except by an instrument in writing signed by the
party against which enforcement of the change, waiver or termination
is sought.
27. Any determination by any court of competent jurisdiction that any
provision of this Agreement is invalid shall not affect the validity
of any other provision of this Agreement, which shall remain in full
force and effect and shall be construed as to be valid under
applicable law. No waiver by any party of any provision (or breach
of any provision) of this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed or
construed either as a further or continuing waiver of any such
provision or breach or as a waiver of any other provision (or of a
breach of any other provision) of this Agreement.
Consulting Agreement
Bidville, Inc. Page 6 of 7
28. Each party agrees to execute this Agreement in original counterparts
and do all things necessary to effectuate the purposes of this
Agreement without delay or limitation. The parties hereto agree that
the fact of execution may be by facsimile transmission.
29. This Agreement may not be terminated in the first year of the
Primary Term. Following such time, either party may terminate this
Agreement by giving to the other ninety (90) days written notice at
the other party's address of record. In the event of termination of
this Agreement by the Company during the Primary Term, Consultant
shall be entitled to a payment equal to twelve (12) months of the
then-current consulting fee ("Termination Amount"). Any payments,
expenses, or fees due to Consultant at the time of termination, in
addition to the Termination Amount, must be paid to Consultant
within ninety (90) days of the date of termination, unless mutually
agreed to by the Parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
ST. XXXXX INVESTMENT GROUP, INC., a Florida corporation
By: /s/ Xxxxx X'Xxxx
Name: Xxxxx X'Xxxx
Its: Secretary
BIDVILLE, INC., a Nevada corporation
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Its: Chief Executive Officer
Consulting Agreement
Bidville, Inc. Page 7 of 7
